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Sanders v. Davis

United States District Court, E.D. California

June 15, 2017

RONALD L. SANDERS, Petitioner,
RON DAVIS, Warden of San Quentin State Prison, Respondent.




         Petitioner Ronald L. Sanders (hereinafter “Petitioner”), a state prisoner sentenced to death, is before the Court pursuant to a partial remand by the United States Court of Appeals for the Ninth Circuit of his previously denied petition for writ of habeas corpus (28 U.S.C. § 2254). He is represented in this action by appointed counsel Nina Rivkind.

         Respondent Ron Davis (hereinafter “Respondent”) is named as Warden of San Quentin State Prison.[1] He is represented in this action by Lewis Martinez of the Office of the California Attorney General.

         Before the Court for a decision following an evidentiary hearing held October 28 through 30, and November 3, 2008 and subsequent briefing on claim 38, which alleges that trial counsel was ineffective by failing to investigate and present mitigation thereby precluding Petitioner's voluntary, knowing, intelligent and competent waiver of a penalty defense.[2]

         Having carefully reviewed and considered proceedings from the evidentiary hearing, the filings and the relevant case law and for the reasons set out below, the undersigned (1) vacates the previously ordered stage two evidentiary hearing, (2) denies claim 38 on the merits, (3) denies the third amended petition on the merits, and (4) issues a certificate of appealability for claim 38.


         This factual summary is taken from the California Supreme Court's summary of the facts in its September 27, 1990 opinion. These state court factual findings are entitled to a presumption of correctness when fairly supported by the record. See former 28 U.S.C. § 2254(d) (1994); Wainwright v. Witt, 469 U.S. 412, 426 (1984). Petitioner has not shown that the presumption of correctness does not apply. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008) (state court factual findings under pre-AEDPA law are presumed to be correct unless not fairly supported by the record); Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (same, noting pre-AEDPA § 2254(d) exceptions to deference where factual basis for claim not fully adjudicated in state court); Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998) (on habeas review, the factual findings of the state court are presumed to be correct unless they are “not fairly supported by the record”); Paradis v. Arave, 130 F.3d. 385, 390 (9th Cir. 1997) (“[P]ursuant to 28 U.S.C. 2254(d), the factual findings of the state court are presumed correct.”).

         A. Guilt Phase

         In 1981, Dale Boender and Janice Allen moved to Bakersfield from Oildale.

Boender supported the couple by selling cocaine and marijuana. One of his customers was Brenda Maxwell, but he stopped selling to her because she owed him money from prior transactions. On the morning of January 21, 1981, Maxwell's aunt, Donna Thompson, and defendant Ronald Lee Sanders visited Maxwell. The three decided to rob Boender of drugs and money and agreed to the following plan: Maxwell would entice Boender to her home by claiming she had a friend who wanted to buy a large quantity of cocaine. When Boender arrived, defendant would knock him out and they would rob him. Defendant would then bind Boender with duct tape before leaving. According to their plan, defendant would similarly bind Maxwell so she would appear to also have been a victim. Thompson would arrive later to “discover” and free the pair.
Maxwell's friend, Glen Blackford, was also visiting her at the time but was left in the living room while Maxwell, Thompson, and defendant planned the crime in the bedroom. When they returned to the living room after their planning session, Maxwell told Blackford “[s]omething is going to happen [so] get out of here.” Blackford and Thompson then left (as planned) and Maxwell placed several calls to Boender to arrange the deal.
Enticed by the promise of a large cocaine sale, Boender and Allen drove to Maxwell's mobilehome. Allen entered the home and began to sit down next to Maxwell. As Boender stepped through the doorway, defendant emerged from the kitchen and began beating Boender with a two-foot long piece of a pool stick. A struggle ensued but Boender and Allen eventually managed to exit the mobilehome, at which point defendant fled. Boender and Allen then drove off, first to a friend's house but later to a hospital to attend to Boender's injuries. They stayed at a relative's home until Friday, January 23, 1981.
Meanwhile, Thompson and defendant returned to Maxwell's mobilehome to discuss the aftermath of the botched robbery attempt. Maxwell was concerned that Boender would realize she had “set him up, ” and defendant was worried Boender could identify him. The three drove to a house on Jefferson Street where defendant engaged the assistance of John Cebreros. The group then went to Thompson's house where Maxwell called mutual friends of hers and Boender's to tell them she had been robbed and raped so as to enhance her claim that she had been victimized along with Boender.
On Friday, Boender and Allen decided to return to Boender's apartment. They arrived in the afternoon and told Boender's two roommates, Haney and Weinman, about the earlier assault. Later, Boender and Allen met Boender's former roommate, George Littleton, at a bar; the three of them went to Littleton's apartment around 7 p.m. and shared a small bottle of wine. After shopping for groceries, Boender and Allen returned home. Haney and Weinman were gone for the evening.
While Boender and Allen were preparing dinner, there was a knock at the door. Leaving Allen in the kitchen, Boender went to the front door and opened it, finding Cebreros and defendant standing there, the latter armed with a gun. Although he believed he had only seconds to live, Boender concentrated on their faces so he could remember them if he should see them again. Defendant spun Boender around and pushed him to the floor, face down. He felt someone's knee in his back and something pressed against his neck. Allen emerged from the kitchen and was also made to lie on the floor. Boender's glasses were ripped from his face and both he and Allen were bound and blindfolded.
One of the assailants demanded that Boender tell them where he kept his cocaine, and he directed them to Allen's purse. After he told them his money was in his shirt pocket, someone removed it. Boender heard the two assailants rummaging through the apartment but could not tell what was going on. After a few minutes, he was dragged to what seemed like his bedroom. He heard more footsteps, muffled talking, and more banging around the apartment. One of the assailants said he wanted to leave but the other said he wanted to stay. Boender then heard someone approach, felt a blow to the head, and recalled nothing further.
Boender's roommates returned to the apartment in the early morning and discovered the apartment full of smoke. A search revealed food burning in the oven. On further investigation, they discovered Boender in his bedroom, lying in a pool of blood. After calling an ambulance, they noticed that the apartment was in disarray, there were spots of blood around, and a baggie of marijuana was missing. When Haney found Allen's body in his bedroom, he called the police.
Both Boender and Allen had been bound by lengths of electrical cord cut from Boender's vacuum cleaner. Allen sustained a fatal head wound which fractured her skull and lacerated her brain. Boender suffered a skull fracture but was conscious and semicoherent when police arrived. He was not questioned until the next day.
Haney and Weinman told police about Boender's story of the attempted robbery two days earlier, prompting police to contact Maxwell. She falsely told police that Cebreros came to her home, forced her to call Boender, and then beat him up when he arrived. However, she gave them accurate descriptions of defendant and Cebreros as well as the address of the Jefferson Street house where defendant met Cebreros. From his hospital bed, Boender gave descriptions of defendant and Cebreros that matched Maxwell's descriptions.
Cebreros was arrested the next day in front of the Jefferson Street house. In his car, police found a gun similar to that which Boender described as the one used in the attempt to murder him. In Cebreros's boot, police found a baggie of marijuana which was identical to the one taken in the robbery. Both Maxwell and Boender positively identified Cebreros as one of the assailants.
A few days later, Maxwell recanted her story and told police the truth about the bungled robbery attempt. She also told police about the duct tape defendant intended to use to bind Boender. Police found a roll of such tape in Maxwell's home and tests revealed defendant's fingerprints on it. He was arrested and positively identified by Boender in a photographic lineup later that week.
Defendant and Cebreros were tried jointly and they presented an alibi defense. Three defense witnesses testified that on the night of the murder, both defendant and Cebreros were at the home of Cebreros's brother, Salvador, talking, playing chess, and drinking beer. There was also evidence from Boender's neighbors that although two men were seen outside Boender's apartment on the night of the murder, neither one looked like Cebreros or defendant. Finally, there was evidence that defendant had used Maxwell's roll of duct tape for an innocent purpose a few days earlier.
Defendant's first trial ended in a mistrial when the jury could not reach a verdict. On retrial, both he and Cebreros were convicted on all counts. The prosecutor declined to seek the death penalty against Cebreros and he was sentenced to life without the possibility of parole.
B. Penalty Phase
The prosecution produced several witnesses at the penalty phase who described five armed robberies defendant committed in Orange County in 1970. Although none of the witnesses could positively identify defendant at trial, a police expert testified that the fingerprints of the gunman in the five Orange County robberies matched defendant's fingerprints.
James Quinn testified that on October 1, 1970, he was working late at the Allstate Motel in Santa Ana when defendant and a crime partner robbed him at gunpoint. Thomas Ferguson testified that defendant, brandishing a revolver, robbed him on September 12, 1970, while Ferguson was employed as a clerk at the Station Liquor Store in Tustin. Defendant committed an armed robbery in the same establishment on November 20, 1970, this time robbing clerk Fred Turnbull.
Sammy Mitchell testified that he was working in Mitchell's Market in Tustin on October 6, 1970, when defendant robbed him at gunpoint. Defendant was finally arrested after this crime spree while fleeing from yet another armed robbery, this one occurring in a 7-Eleven convenience store, also in Tustin. Defendant confessed his guilt to all five robberies and the police officers to whom he confessed testified at the penalty phase. Defendant was sentenced to state prison and was granted parole in 1973.
Defendant declined to present any evidence in mitigation or make a closing argument. The jury returned a verdict of death within a few hours.

People v. Sanders, 51 Cal.3d 471, 485-89 (1990).


         A. State Proceedings

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a March 3, 1982 judgment of the Superior Court of California, County of Kern, Case No. 22079, imposing the death sentence. (7 CT 1882-83, 1900, 1912-13; March 3, 1982 RT 25-30.)[3]

         On January 22, 1982, Petitioner and co-defendant John Cebreros (hereinafter “Cebreros”), were each convicted by jury, on retrial (after one jury was unable to reach a verdict) of one count of first degree murder of Janice Allen (hereinafter “Allen”) with special circumstances (murder committed during the commission or the attempted commission of robbery; murder committed during the commission or the attempted commission of burglary; murder to prevent testimony in a criminal proceeding; and murder which was especially heinous, atrocious, and cruel); one count of attempted first degree murder of Dale Boender (hereinafter “Boender”); and one each counts of robbery, burglary and attempted robbery. (RT 1796a-97a; 2 CT 276A, 1695-1704); see also Sanders, 51 Cal.3d at 485.[4]

         On January 25, 1982, at the start of Petitioner's penalty phase trial, defense counsel Frank Hoover (hereinafter “Hoover”) explained to the trial judge that he had a “serious dilemma” because Petitioner rejected his advice to present a penalty defense. (RT 1822-25.) Hoover stated to the court that Petitioner opted instead not to present any penalty phase evidence. (Id.) Hoover stated to the court that Petitioner did not want to participate in the penalty phase (RT 1831), and did not want Hoover to present any penalty phase argument. (RT 1832.)

         Pursuant to Petitioner's request, no testimony was presented on his behalf at the penalty phase, there was no defense cross-examination, no evidence was presented in mitigation and the defense waived closing argument. (RT 1851-1919); see also Sanders, 51 Cal.3d at 489. The prosecution presented as aggravating evidence the circumstances of the capital crimes against Allen and Boender; the special circumstances found true; and evidence that Petitioner had confessed to involvement in the five armed robberies in 1970, was convicted of one and served time in state prison. (RT 1851-1919); see also Sanders, 51 Cal.3d at 488.

         The jury returned a penalty verdict of death for Petitioner on February 3, 1982. (RT 1929); see also Sanders, 51 Cal.3d at 489. On March 3, 1982, the trial court sentenced Petitioner to death and also imposed determinate terms for the other crimes, staying those terms pursuant to state law. (March 3, 1982 RT 25-30.)

         On September 27, 1990, the California Supreme Court on direct appeal set aside two of the special circumstances (i.e., especially heinous, atrocious and cruel murder; and burglary- murder), but otherwise affirmed the judgment as to both guilt and penalty. Sanders, 51 Cal.3d at 485.

         On November 28, 1990, the California Supreme Court denied Petitioner's petition for rehearing. Id., at 547.

         The United States Supreme Court denied certiorari on May 28, 1991, Sanders v. California, 500 U.S. 948 (1991), and denied rehearing on August 2, 1991, Sanders v. California, 501 U.S. 1269 (1991).

         On September 1, 1999, the California Supreme Court summarily denied Petitioner's exhaustion petition on procedural grounds and on the merits. See California Supreme Court Case No. S043131.

         On September 22, 1999, the California Supreme Court denied on the merits Petitioner's supplemental exhaustion petition (which contained two Lackey v. Texas claims alleging his long tenure on death row is cruel and unusual punishment, 514 U.S. 1045 (1995)). California Supreme Court Case No. S082022; (see also DOC. No. 101 at 1).

         B. Federal Proceedings

         On July 13, 1992, Petitioner commenced these proceedings by filing a petition for writ of habeas corpus and applications for stay of execution and appointment of counsel. (DOC. No. 1.)

         On December 20, 1993, Petitioner amended his federal petition to include exhausted and unexhausted claims. (See DOC. No. 37.) This Court stayed federal proceedings (DOC. No. 48) and on November 7, 1994, Petitioner filed his noted state exhaustion petition.

         On November 17, 1999, following state court exhaustion proceedings, Petitioner filed a second amended federal petition asserting 61 claims. (DOC. No. 100.) Petitioner's supporting points and authorities were filed on April 6, 2000, (DOC. No. 114) and a supplemental brief was filed on May 22, 2000, (DOC. No. 115).

         On August 25, 2000, Respondent filed an answer to the second amended petition with points and authorities, admitting certain jurisdictional and procedural allegations, asserting procedural defenses, and denying all claims 1-61. (DOC. No. 130.)

         On September 5, 2000, Petitioner filed a request to expand the record. (DOC. No. 136.) On September 26, 2000, Petitioner filed a request for evidentiary hearing accompanied by a request to expand the record. (DOC. No. 138.) On October 16, 2000, Respondent filed his opposition to the motion for evidentiary hearing. (DOC. No. 139.) On October 25, 2000, Petitioner filed supplemental points and authorities in support of evidentiary hearing. (DOC. No. 140.)

         On November 29, 2000, the Court granted expansion of the record by five declarations along with public records obtained from the Kern County District Attorney's office, in support of claims 1, 9, 14-16, 33, 38-40 and 55. (DOC. No. 141.) Additionally, the Court ordered Respondent to further expand the record with excerpts from the first trial in 1981, specifically the clerk's transcript of jury deliberations (which resulted in a mistrial when the jury was unable to reach a unanimous verdict, returning eleven to one for conviction). (Id.); see also Sanders, 51 Cal.3d at 488.

         On July 24, 2001, Petitioner lodged a third amended petition adding claim 62 (alleging prosecution's use of false testimony), claim 63 (cumulative prosecutorial misconduct) and claim 64 (actual innocence). (DOC. Nos. 145, 146.)

         On August 24, 2001, the Court granted Petitioner leave to file the third amended petition (DOC. No. 147); denied on the merits the third amended petition including claims 1-64; denied Petitioner's further request for expansion of the record and for evidentiary hearing; denied certificate of appealability (DOC. No. 148); and entered judgment for Respondent. (DOC. Nos. 148, 149.)

         On September 21, 2001, the Court granted Petitioner's motion to expand the record with certain declarations of investigators and counsel (see [third amended petition] exhibits 721, 723, and 726-730), and denied Petitioner's request for reconsideration of claims 14, 15, 22, 38, 39, 62 and 63 and denied Petitioner's request for reconsideration of denial of certificate of appealability. (DOC. No. 154.)

         Petitioner filed a notice of appeal of the entry of judgment in favor of Respondent on September 21, 2001. (DOC. No. 156.)

         On September 27, 2001, the Court denied Petitioner's motion for relief from judgment. (DOC. No. 158.)

         1. Reversal by Circuit Court

         On July 8, 2004, the Ninth Circuit affirmed in part, reversed denial of the petition as it related to death sentence, and remanded with instructions, Sanders v. Woodford, 373 F.3d 1054 (2004), finding that the California Supreme Court failed to either independently re-weigh aggravating and mitigating factors or conduct an appropriate harmless error analysis after it invalided the two special circumstances.

         2. Reversal on Certiorari by Supreme Court

         The U.S. Supreme Court granted certiorari. On January 11, 2006, the Supreme Court found the invalid special circumstances did not affect the constitutionality of the death sentence by adding an improper aggravating element and reversed and remanded to the Ninth Circuit. Brown v. Sanders, 546 U.S. 212 (2006).

         3. Remand by Circuit Court

         On March 16, 2006, the Ninth Circuit, on remand, relied in part on its (subsequently vacated - see Landrigan v. Schriro, 501 F.3d 1147 (9th Cir. 2007)) en banc decision in Landrigan v. Schriro, 441 F.3d 638 (2006) (finding colorable defendant's ineffective assistance claim even though defendant himself had instructed counsel not to present mitigating evidence), and reversed this Court's denial of an evidentiary hearing on Petitioner's claim 38 which alleged that defense counsel Hoover provided ineffective assistance by acquiescing in Petitioner's request to forgo a penalty defense. See Sanders v. Brown, 171 F.App'x 588, 595 (2006). Specifically, the Circuit Court remanded for an evidentiary hearing to determine the merits of that claim including a determination of “whether [defense counsel] Hoover's decision not to conduct a reasonable investigation could have constituted ineffective assistance, i.e., whether [Petitioner's] insistence - the rationality of which Hoover at times questioned - that he did not want to present such a defense excused Hoover from his duty to conduct a penalty phase investigation.” Id. at 592. The Ninth Circuit affirmed the Court's denial of Petitioner's other penalty phase claims. Id. at 595.

         4. Bifurcated Evidentiary Hearing Following Remand

         On March 27, 2007, the Court ordered a bifurcated evidentiary hearing. The first stage hearing was to consider issues of deficient performance, i.e., whether counsel's decision not to investigate mitigation evidence was deficient performance; how the mitigation evidence proffered in this proceeding might have been used by counsel to convince Petitioner to change his mind about not presenting a penalty defense at trial; and whether counsel should have, or could have presented mitigation evidence in spite of Petitioner's objections. (DOC. No. 180; see also DOC. No. 190.)

         The second stage hearing was to consider issues of prejudice, i.e., whether, had Petitioner changed his mind, the mitigation evidence would have convinced the jury to sentence him to life without parole. (Id.) The Court provided that Respondent could contest and controvert the mitigation evidence during the second stage of the evidentiary hearing which would take place after resolution of the first stage. (Id.) The Court ordered that the mitigation evidence at the hearing would not be limited to the first stage proffer and would be assumed true for the first stage hearing. (DOC. No. 190.)

         a. Supreme Court Reversal in Landrigan v. Schriro

         Subsequently, on May 14, 2007, the Supreme Court on grant of certiorari reversed and remanded the Ninth Circuit's en banc decision in Landrigan v. Schriro. The Supreme Court found that the failure of Landrigan's counsel to present mitigating evidence was not ineffective assistance where Landrigan himself actively interfered with and refused to allow presentation of such evidence. See Schriro v. Landrigan, 550 U.S. 465, 478 (2007) (hereinafter “Landrigan”). The Supreme Court also noted therein that it had “never imposed an informed and knowing requirement upon a defendant's decision not to introduce evidence.” Id., at 479.

         As noted, the Ninth Circuit then vacated its en banc decision in Landrigan v. Schriro.

         b. Reframed Issues for Evidentiary Hearing Following Landrigan

         Given these events, in June 2007 the Court reframed the inquiry on evidentiary hearing as follows:

There is a question whether [Landrigan] changes the conclusion of the Ninth Circuit on remand regarding the finding of deficient performance in Hoover's decision not to investigate mitigating evidence. [Citation] [Landrigan] held that it was not an unreasonable determination for the state court to find there could be no prejudice from counsel's failure to investigate mitigation where the defendant refused to allow the presentation of mitigating evidence. [Citation]
. . .
[Landrigan] presents the following question to be answered based on the facts developed at the first stage of the evidentiary hearing: Was trial counsel's decision not to investigate mitigation evidence deficient performance, or was it reasonable in light of [Petitioner's] opposition to presenting a penalty defense? This question will be addressed at the first stage of the evidentiary hearing along with whether [Petitioner] would have changed his mind about presenting a penalty defense had Hoover investigated and discussed the potential effect of mitigation with him, and whether Hoover should have, or could have, presented mitigation in spite of [Petitioner's] objections.

(DOC. No. 208 at 1:26-3:12.)

         c. Stage One Evidentiary Hearing and Post-Hearing Briefing

         The stage one evidentiary hearing was conducted October 28 through 30, and November 3, 2008. Petitioner was represented at the hearing by appointed counsel of record, Eric E. Jorstad and Nina Rivkind, and Respondent was represented by Deputy Attorney General F. Brian Alvarez.

         At the conclusion of the first stage evidentiary hearing the court sealed the entire transcript at Petitioner's request, consistent with the parties' October 5, 2007 stipulated protective order (“Protective Order”) which limits use of privileged information including attorney-client information to Respondent and this proceeding. (DOC. No. 227); see also Bittaker v. Woodford 331 F.3d 715, 721-24 (9th Cir. 2003) (petitioner raising a claim of ineffective assistance of counsel waives the attorney-client privilege for purposes of the habeas petition).

         The Court has not issued a ruling following the first stage evidentiary hearing.[5]

         On December 2, 2008, the Court granted Petitioner's motion to expand the stage one hearing record with [third federal petition] exhibits 2, 10, 11, 13-18, 20-23, 24, 25, 28, 30-36, and 56-133, which are deposition transcript and public records and declarations upon which the opinions of Petitioner's experts are based. (DOC. No. 310.) On July 17, 2009, the Court granted Petitioner's supplemental motion to expand the record with additional like documents, i.e., the August 17, 2007, deposition transcript of Ima Salie; the October 19, 1994 declaration of Robert Cook, Esq.; the October 10, 1994 declaration of Arlene Fangmeyer; and the death certificates of Arlene Fangmeyer, Marian Ann Beadle (aka Marian Sanders), and Dr. Francis A. Matychowiak - all of which were inadvertently omitted from the motion granted on December 2, 2008. (DOC. No. 333.)

         The parties filed post-evidentiary hearing briefs including proposed findings of facts and conclusions of law. (DOC. Nos. 321, 322, 329, 336, 339, 342.)

         On January 20, 2015, the Court directed the parties to file supplemental briefs specifically addressing the impact of Landrigan. Petitioner filed his supplemental brief on March 23, 2015. (DOC. No. 359.) Respondent filed his supplemental brief on May 19, 2015. (DOC. No. 360.) Petitioner filed his reply brief on July 6, 2015. (DOC. No. 365.)

         On January 12, 2016, the Court directed the parties provide supplemental briefs specifically addressing whether the mitigation evidence taken as true at the first stage of the evidentiary hearing, as expanded and supplemented, would have convinced the jury to sentence Petitioner to life without parole. Petitioner filed his supplemental brief on April 11, 2016. (DOC. No. 372.) Respondent filed his supplemental brief on June 7, 2016. (DOC. No. 377.) Petitioner filed his reply brief on October 14, 2016. (DOC. No. 389.)

         On January 3, 2017, the Court ordered that certain documents relating to the first stage evidentiary hearing be unsealed. (DOC. No. 397; see also EHRT 16-17; DOC. No. 227.)


         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); see also Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).


         This action was initiated on July 13, 1992. Because this action was initiated before April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) do not apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000) (overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003)); McMurtrey, 539 F.3d at 1118 n.1; Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir. 2004); accord Webster v. Chappell, No. CIV S-93-306 LKK DAD, 2014 WL 2526857, at *7-9 (E.D. Cal. June 4, 2014) report and recommendation adopted sub nom. Webster v. Warden, San Quentin State Prison, No. CIV. S-93-0306 LKK D, 2014 WL 4211115 (E.D. Cal. Aug. 26, 2014).

         Under pre-AEDPA standards, a writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not available for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         However, “a claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process.” Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)) (abrogated on other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988)); see also Lisenba v. California, 314 U.S. 219, 236 (1941); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). In order to raise such a claim in a federal habeas petition, “the error alleged must have resulted in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962); Henry, 197 F.3d at 1031; Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972); see also Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (“Federal courts are not forums in which to relitigate state trials.”)

         The state courts' application of law to historical facts is reviewed by the federal habeas court de novo as are mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 110 (1995) (holding that under pre-AEDPA standards federal courts are not required to defer to state court determinations of mixed questions of law and fact); accord Hoyle v. Ada County, 501 F.3d 1053, 1059 (9th Cir. 2007); Thompson v. Borg, 74 F.3d 1571, 1573 (9th Cir. 1996); Powell v.. Gomez, 33 F.3d 39, 41 (9th Cir. 1994); Ben-Sholom v. Ayers, 566 F.Supp.2d 1053, 1060 (E.D. Cal. 2008).

         The federal habeas court also “need not defer to state court rulings on questions of law since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is in custody in violation of the Constitution or laws or treaties of the United States.” McMurtrey, 539 F.3d at 1118 (quoting Lambrix v. Singletary, 520 U.S. 518, 523 (1997)). The federal habeas court is to “simply resolve the legal issue on the merits, under the ordinary rules.” Id. (quoting Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005)).

         The habeas petitioner bears the burden of “proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Townsend v. Sain, 372 U.S. 293, 312 (1963) (overruled on other grounds by Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992)); accord Silva, 279 F.3d at 835 (“It is the petitioner's burden to prove his custody is in violation of the Constitution, laws or treaties of the United States.”) (quoting Snook v. Wood, 89 F.3d 605, 609 (9th Cir. 1996)). To prevail, the petitioner must “convince the district court ‘by a preponderance of evidence' of the facts underlying the alleged constitutional error.” McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994) (quoting Johnson v. Zerbst, 304 U.S. 458, 469 (1938)) (abrogated on other grounds by O'Dell v. Netherland, 521 U.S. 151 (1997)); accord Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); Silva, 279 F.3d at 835.

         The granting of federal habeas relief is appropriate only if the alleged errors “had substantial and injurious effect or influence in determining the jury's verdict.” Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006) (quoting Brecht, 507 U.S. at 637).

         With these standards of review in mind, the undersigned will address Petitioner's claim 38, the subject of the evidentiary hearing upon remand.

         V. REVIEW OF CLAIM 38

         Petitioner alleges that Hoover was ineffective at the penalty phase by failing to investigate, develop and present then available mitigation evidence proffered during state habeas proceedings, record expansion in this proceeding and the first stage evidentiary hearing, precluding any voluntary, intelligent and competent penalty defense waiver, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.[6] (DOC. No. 147 at 236-39.)

         A. Clearly Established Law - Ineffective Assistance of Counsel

         The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963); Silva, 279 F.3d at 836.

         The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984).[7] In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at 687; see also Harrington v. Richter, 562 U.S. 86, 104 (2011); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

         First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that “counsel's representation fell below an objective standard of reasonableness, ” and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 562 U.S. at 88, (citing Strickland, 466 U.S. at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688.

         Judicial scrutiny of counsel's performance is highly deferential, and the habeas court must guard against the temptation “to second-guess counsel's assistance after conviction or adverse sentence.” Id. at 689. Instead, the habeas court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id.; accord Richter, 562 U.S. at 107. A court indulges a “‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This presumption of reasonableness means that not only do we “give the attorneys the benefit of the doubt, ” we must also “affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011).

         The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.' ” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). However, “general principles have emerged regarding the duties of criminal defense attorneys that inform [a court's] view as to the ‘objective standard of reasonableness' by which [a court must] assess attorney performance, particularly with respect to the duty to investigate.” Summerlin, 427 F.3d at 629.

“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. Nonetheless, [S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statement or actions.

Wiggins, 539 U.S. at 521, (quoting Strickland, 466 U.S. at 690-91); see also Thomas v. Chappell, 678 F.3d 1086, 1104 (9th Cir. 2012) (counsel's decision not to call a witness can only be considered tactical if he had “sufficient information with which to make an informed decision”); Reynoso v. Giurbino, 462 F.3d 1099, 1112-15 (9th Cir. 2006) (counsel's failure to cross-examine witnesses about their knowledge of reward money cannot be considered strategic where counsel did not investigate this avenue of impeachment); Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004) (penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented).

         Second, the petitioner must demonstrate prejudice, that is, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.' ” Richter, 562 U.S. at 104, (quoting Strickland, 466 U.S. at 693). “Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' ” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). Under this standard, we ask “whether it is ‘reasonably likely' the result would have been different.” Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).

         That is, only when “[t]he likelihood of a different result [is] substantial, not just conceivable, ” id., has the defendant met Strickland's demand that defense errors were “so serious as to deprive the defendant of a fair trial, ” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687), i.e., a trial whose result is reliable. Strickland, 466 U.S. at 688. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail.

         The basic requirements of Strickland apply with equal force in the penalty phase. Thus, petitioner must show that counsel's actions fell below an objective standard of reasonableness and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88. In the context of the penalty phase, just as in the guilt phase, the Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.' ” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).

         In issuing its decision following the evidentiary hearing, the Court “reviews de novo the evidence elicited through discovery and at the evidentiary hearing in these proceedings and is no longer constrained by the limitations imposed by § 2254(d).” Williams v. Davis, No. CV 00-10637 DOC, 2016 WL 1254149, at *8 (C.D. Cal. Mar. 29, 2016) (citing Frantz v. Hazey, 533 F.3d 724, 737 (2008)) (“In sum, where the analysis on federal habeas, in whatever order conducted, results in the conclusion that § 2254(d)(1) is satisfied, then federal habeas courts must review the substantive constitutionality of the state custody de novo.”); accord Williams v. Woodford, 859 F.Supp.2d 1154, 1161 (E.D. Cal. 2012).

         B. State Court Direct and Collateral Review of Claim 38

         As discussed post, on direct appeal the California Supreme Court considered and rejected certain of Petitioner's claim 38 allegations.

         Petitioner raised in his state habeas petition these same allegations of ineffective assistance by failure to present mitigating evidence at the penalty phase, which the California Supreme Court summarily denied on September 1, 1999. See California Supreme Court Case No. S043131.

         C. Analysis of Claim 38

         Petitioner alleges that Hoover was deficient by failing to investigate, develop and present a penalty phase defense notwithstanding Petitioner's stated intention that no such defense be presented. Petitioner alleges prejudice because the jury was unaware of the proffered mitigation evidence supporting a sentence other than death. (DOC. No. 147 at 238-39.)

         Specifically, Petitioner argues that Hoover fell below then existing professional norms by (i) accepting appointment notwithstanding that he was unqualified for capital defense; (ii) failing to request assistance of second counsel; (iii) failing to identify, locate, investigate, interview and prepare mitigation witnesses, (iv) failing to obtain records of, and investigate and retain an expert to review and opine upon mitigating aspects of Petitioner's life history, (v) failing to investigate and impeach aggravating witnesses and evidence, (vi) failing to advise Petitioner of potentially mitigating social history and mental health evidence, how it might be presented and how it might impact the sentencing verdict, (vii) failing to reject Petitioner's uninformed and incompetent penalty defense waiver, and (viii) failing to present any mitigation argument on Petitioner's behalf. (DOC. No. 147 at 236-39; see also DOC. No. 359 at 2-4); Sanders, 171 F.App'x at 595.

         As discussed post, Petitioner argues that the following types of then available mitigation evidence were not presented to the jury:

1) Petitioner's psychosocial history including evidence of multi-generational poverty and deprivation, frequent relocation, mental illness and alcoholism, abuse and neglect; the divorce of his parents; a violent step-father; and rejection by the military following his under-age enlistment.
2) Petitioner's personal attributes of protectiveness of his family, generosity to friends and artistic talent.
3) Petitioner's developmental and cognitive deficits including anxiety disorder, Attention Deficit/Hyperactivity Disorder (hereinafter “ADD-H”), Post-Traumatic Stress Disorder (hereinafter “PTSD”), poly-substance abuse and mental impairments and illness including bipolar disease.
4) Evidence mitigating Petitioner's criminal history including mental impairments and drug use at the time of the crimes, and his tendency to accept blame for others including as reflected in his more severe sentence than his equally culpable co-defendants in the noted 1970 armed robberies.
5) Evidence that the capital crimes were not highly aggravated. (DOC. No. 147 at 238-39.)

         1. Preliminary Matters

         a. No Waiver by Respondent

         Petitioner argues that Respondent's failure to file a brief responsive to Petitioner's April 10, 2009 post-hearing brief constitutes a waiver or concession of Petitioner's proposed findings therein.

         The Court rejects this argument as unsupported. Petitioner has not demonstrated a voluntary and knowing waiver by Respondent. See Johnson, 304 U.S. at 464 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege).

         Notably, the Court's order scheduling post-hearing briefing did not require either party file a reply brief. (DOC. No. 309 at 378-79.)

         b. Scope of Remand

         Petitioner argues the Ninth Circuit's memorandum decision remanding this case for evidentiary hearing includes the Circuit Court's determination that Hoover was deficient by failing to adequately investigate mitigating evidence.

         However, this Court previously rejected such argument when it ordered a bifurcated evidentiary hearing. (DOC. Nos. 180, 190.) The Court rejects Petitioner's re-argument of this issue in his post-hearing briefing (DOC. No. 206 at 6, 32), for the reasons previously stated.

         2. Petitioner has not Demonstrated Deficient Performance

         Petitioner alleges that Hoover was unqualified to represent him, unreasonably failed to investigate, develop and present mitigation evidence and improperly acquiesced in his waiver of a penalty defense. The Court rejects these allegations for the reasons that follow.

         a. Appointment as Petitioner's Counsel

         Petitioner alleges that Hoover lacked sufficient capital defense knowledge and experience and failed to seek appointment of qualified second counsel. (DOC. No. 321 at 13-19.)

         Petitioner points out that his case was Hoover's first and only capital homicide case. (EH Ex. 12 at ¶¶ 14, 18.) He argues that Hoover's representation violated ABA Standards for Criminal Justice (hereinafter “ABA Standards”) because Hoover knew he lacked the capital habeas knowledge and experience necessary to effectively represent Petitioner and nonetheless failed to take steps to educate and inform himself. (EH Ex. 5 at ¶¶ 17, 58-59; EHRT 303); see also Bond v. Beard, 539 F.3d 256, 289 (3d Cir. 2008) (counsel without capital experience who took full responsibility for capital sentencing trial found ineffective for lack of experience and preparation).

         However, Petitioner fails to demonstrate that on these facts Hoover was unqualified and that Hoover failed to associate with experienced capital counsel. The record reflects that Hoover was an experienced prosecutor. (EH Ex. 12 at ¶¶ 3-15; EH Ex. 38 at 5-6, 9; EHRT 102.) Prior to his appointment to represent Petitioner, Hoover spent six years with the Kern County district attorney's office as a deputy handling cases that included non-capital homicides, three special circumstance cases and over one hundred jury trials. (EHRT 98-102; see also EH Ex. 12 at ¶¶ 3-17.) Hoover then entered a private civil and criminal practice. (Id.; see also DOC. No. 305 at 7.) Petitioner's case was his first appointed case. (EHRT 104.)

         Hoover refrained from accepting appointment in this matter until he was assured he could provide competent capital representation. He testified that he did not seek and initially declined the appointment because a capital defense appointment represented “a huge undertaking”; he had not defended a capital case before; and at the time Kern County allowed appointment of only one attorney. (EHRT 107; EH Ex. 12 at ¶ 18.) He “felt that [he] really wasn't qualified without at least co-counsel having death penalty experience.” (EHRT 107.) He accepted appointment (EH Ex. 12 at ¶ 18; EH Ex. 38 at 13-15; EHRT 104-08) only when informed that a more experience capital attorney, James Faulkner (hereinafter “Faulkner”) was representing co-defendant John Cebreros in the joint trial. (EH Ex. 12 at ¶ 18; EHRT 107-108; EH Ex. 38 at 15.)

         Petitioner faults Hoover for not consulting with Faulkner or Stanley Simrin (hereinafter “Simrin”) who replaced Faulkner as counsel for co-defendant Cebreros in the joint guilt phase trial shortly after Hoover's appointment, regarding the penalty phase. (EH Ex. 12 at ¶ 58; EH Ex. 8 at ¶ 45; EHRT 325.) He points out that Hoover could not draw upon any synergy with co-defendant's counsel at the penalty phase because Petitioner and Cebreros had separate sentencing proceedings; Petitioner's sentencing proceeding preceded Cebreros; and the prosecution determined not to seek the death penalty against Cebreros.[8] (EH Ex. 8 at ¶2; EH Ex. 12 at ¶ 65.)

         Hoover concedes that he did not request co-defendant's counsel assist with the penalty phase (EH Ex. 38 at 26), which was not part of the joint trial. But at that time, Kern County did not provide for second counsel in capital cases. (EH Ex. 6 at ¶ 14; EHRT 322.) Simrin, an experienced capital defense attorney practicing in Kern County, testified at the evidentiary hearing that it was not then practice of the Kern County Superior Court to appoint two attorneys to capital case defense. (EHRT 321-22; see also EH Ex. 8 at ¶ 12.) Petitioner's Strickland expert, investigator Russell Stetler (hereinafter “Stetler”), similarly testified at the evidentiary hearing. (EHRT 270.)

         Petitioner cites to the opinion of his Strickland expert, capital defense attorney Susan Sawyer (hereinafter “Sawyer”) and argues that in any event Hoover should not have expected assistance from co-defendant's counsel during the joint trial because of the potentially divergent and conflicting interests of co-defendants Petitioner and Cebreros. (EH Ex. 5 at ¶¶ 24-30.) Especially so at the penalty phase, he argues, as only one of the co-defendants was the actual killer (id. at ¶¶ 26-27) and the identity of the actual killer as between co-defendants Cebreros and Petitioner was in issue and potentially mitigating. (Id. at ¶¶ 24-30.) Sawyer also opined that Hoover failed to take advantage of other then available capital defense resources. (Id. at ¶¶ 16-30; EH Ex.'s 136-38.) All this, according to Sawyer was deficient penalty phase performance. (EH Ex. 5 at ¶¶ 22, 30; EHRT 295-96.)

         But Sawyer conceded during her testimony at the evidentiary hearing that Hoover did not have an obligation to refuse appointment as sole counsel - stating only that he should have looked “long and hard” at the decision. (EHRT 303.) Hoover for his part believed that he could gain some benefit from the experience of co-defendant's counsel during the joint trial. (EH Ex. 12 at ¶ 65.) Notably, any issue of conflict between defendants relating to which of the two played the dominant role in the capital crimes (see e.g., EH Ex. 12, Ex. 2 thereto at ¶ 6) appears to attenuate when considered in the context of the applicable felony murder rule and the joint alibi defense. Petitioner has not demonstrated that on the basis of such purported conflict or otherwise, Hoover was unreasonable in believing he could draw upon the capital defense experience of counsel for co-defendant Cebreros and the joint defense investigation.

         Hoover was forthcoming that he was not well-versed in penalty phase rules and procedures including as to mitigation evidence and lingering doubt. (EH Ex. 12 at ¶¶ 25, 57.) Pointedly, joint defense counsel Simrin testified at the evidentiary hearing that “Hoover, due to his lack of experience, did not really know what to do in a capital case.” (EH Ex. 8 at ¶ 20.) But in addition to his long-lived participation with Simrin in the joint defense, Hoover testified that he independently conducted legal research regarding presentation of a mitigation defense, if only minimal research. (EH Ex. 12 at ¶ 57.)

         Additionally, Petitioner has not demonstrated on the evidentiary record that Hoover's penalty phase performance was deficient due to his then existing caseload. (EH Ex. 12 at ¶ 56.) Hoover testified that as a solo practitioner he had “the pressure and deadlines of [his] other cases.” (EH Ex. 12 at ¶ 56.) He testified that in 1981 “[he] was handling one federal civil case and four or five on-going Superior Court civil cases” and that he had “more than one attorney could do even with sharing some of the guilt phase work in this case with Stan Simrin, to prepare for and try the guilt phase of the case.” (Id.)

         However, Petitioner has not pointed to facts in the evidentiary record that Hoover's other cases impacted to any material extent his penalty phase performance in Petitioner's case. See Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (heavy caseload and inexperience of capital defense attorney not basis for ineffective assistance claim absent specific acts or omissions that may have resulted from such inexperience and other professional obligations).

         b. General Penalty Defense Investigation

         Petitioner alleges that any defense investigation Hoover did conduct was untimely and insufficient to develop relevant facts. (See Doc. No. 321 at 16-23, 80-104, citing the ABA Standards § 4-4.1 [2d ed. 1982 Supp.]); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005) (citing 1 ABA Standards § 4-4.1) (“[I]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.”).

         Petitioner argues that Hoover failed to personally direct what turned out to be only a general investigation of Petitioner's background and potentially mitigating circumstances; an investigation where no witnesses were interviewed or prepared to testify on Petitioner's behalf at the penalty phase. (DOC. No. 329 at 10:15-20, citing EH Ex. 12 at ¶¶ 43, 52, 54, EHRT 122); see also Sanders, 171 F.App'x at 590.

         Petitioner goes on to argue that by the time of his conviction, it was too late to complete a sufficient penalty defense investigation. (See EH Ex. 5 at ¶¶ 19, 33-42, 74; EH Ex. 6 at ¶ 14; EH Ex. 8 at ¶¶ 12-15; EH Ex. 12 at ¶¶ 24, 31, 63; EH Ex. 19 at ¶¶ 2-3); see also Williams, 529 US. at 395 (counsel deficient where penalty phase preparation begun one week before trial). Especially so here, given that only four days intervened between the guilt phase verdict return on January 22, 1982 and the scheduled start of the penalty phase set for January 26, 1982. (EH Ex. 12 at ¶ 34.)

         However, for the reasons discussed, post, Petitioner has not shown that Hoover's general investigation was unreasonable given the joint defense strategy and the facts and circumstances Hoover faced in this case.

         i. Background Investigation

         Hoover testified at the evidentiary hearing that he focused on the guilt phase defense until the conviction, at which time he turned his full attention to the penalty phase. (EH Ex. 12 at ¶ 26.) The joint defense strategy was to go to trial as quickly as possible so that the prosecutor would have the least chance to prepare his case and witnesses. (See EH Ex. 12 at ¶ 20.) Hoover reasoned that the prosecution case was “remarkably weak” (EHRT 120) and there was a lack of physical evidence linking Petitioner and Cebreros to the capital crimes. (EH Ex. 12 at ¶ 27; see also DOC. No. 321 at 19-31.) He believed that he could win acquittal. (EH Ex. 12 at ¶¶ 20, 22, 31; EH Ex. 38 at 18.)

         To this end, Hoover testified that he and Simrin collaborated on the case and shared investigation results. (Id.) Petitioner suggests the collaboration was not a close one; especially as to any needed penalty defense. He notes that Roger Ruby (hereinafter “Ruby”), Simrin's defense investigator, testified at the evidentiary hearing that he rarely spoke with Hoover's team and did not personally do any work with respect to Hoover's investigation for the penalty phase. (EHRT 87-91; EH Ex. 19 at ¶¶ 4-5; EH Ex. 8 at ¶ 1.)

         However, the record suggests that Hoover's investigative team worked to some extent with Ruby throughout the investigation of the joint defense. (RT 1464.) Although the guilt phase strategy of quickly going to trial may have shortened the time available for penalty defense investigation, Hoover's defense team nonetheless investigated the penalty defense from the outset. Immediately upon his appointment, Hoover went to the jail to meet with Petitioner (EHRT 108-11), and in Hoover's words began “check[ing] Petitioner out.” (EH Ex. 12 at ¶ 27; see also DOC. No. 321 at 19-31.)

         Hoover started the case investigation that day, retaining investigator Gerald Dodd (hereinafter “Dodd”) (EHRT 112) with whom Hoover had a good working relationship. (EHRT 112-13.) This even though Hoover was unaware whether Dodd had ever investigated a penalty phase defense. (EH Ex. 12 at ¶ 49.) Hoover directed Dodd to check out “the whole personal background of [Petitioner] and to … go to the jail and interview him and get what information he could, corroborate whatever he could, and find out what he could about [Petitioner].” (EHRT 114, 116.) Hoover testified at the evidentiary hearing that he gave this direction “[i]n the unlikely event that [Petitioner] changed his mind [about the penalty defense objection]….” (EHRT 152.)

         Hoover concedes that he did not give Dodd specific instructions regarding the investigation because Hoover assumed based on Dodd's experience as an investigator that he knew what to do. (EH Ex. 12 at ¶ 49.) Dodd began investigating Petitioner's background (EHRT at 112-16) including the little personal information Petitioner had provided to Hoover (id., EH Ex. 12 at ¶¶ 27, 49); information that largely could not be corroborated as discussed, post.

         Dodd's investigation also included information not provided by Petitioner relating to five armed robberies in which Petitioner participated in 1970 in Orange County, California and his resultant felony conviction. (EH Ex. 12 at ¶ 29; id. at Ex. 2 thereto; EHRT 152.) Hoover had the defense team obtain police records and search for the involved officers and witnesses to the robberies. (EH Ex. 12 at ¶ 29; id. at Ex. 3 thereto.) Hoover testified that defense investigator Donald Bond (hereinafter “Bond”), who worked with Dodd, provided a written report on Petitioner's criminal history (EHRT 153-54) relating to potential aggravating circumstances (EHRT 154-55).

         Hoover testified that Petitioner provided essentially no assistance during the course of the investigation. (EHRT 154-55.) Hoover testified that Petitioner's objection to a penalty defense was one of the reasons he did not conduct more than a general penalty defense investigation. (EHRT 147.) Hoover also cited the press of his other cases (EH Ex. 12 at ¶ 56) and the joint defense strategy focused on winning the guilt phase (EH Ex. 12 at ¶¶ 16-17, 53, 56, 65). Even so, the record reflects that Hoover met with Petitioner approximately eight times prior to the first trial. (EH Ex. 12 at 10; EHRT 111-12, 119-26.) Petitioner maintained at all times that he was not guilty. (EHRT 110.)

         Even prior to the first trial, Petitioner expressed his feelings about the death penalty (EHRT 111) and that he did not want Hoover to do anything that would result in a life without the possibility of parole (“LWOP”) sentence. (EHRT 120.) Instead, he wanted Hoover to work for an acquittal. (Id.) Petitioner remained consistent in these feelings through the penalty phase. (EHRT 123.) As discussed, ante and post, the record suggests Hoover presented a vigorous guilt phase defense while directing a general investigation of facts having potential mitigating value.

         (1) Criminal History

         Petitioner alleges that Hoover was deficient by failing to investigate and present evidence mitigating his criminal history.

         However, the record suggests that Petitioner was uninterested in discussing and assisting with the penalty defense. (EHRT 144-45.) Petitioner early on told the defense team he had a master's degree, a job and no criminal background. (EHRT 115.) Defense investigator Dodd confirmed that Petitioner had no criminal record in Kern County. (EH Ex. 12 at ¶ 27.) Hoover relied upon this information provided by Petitioner in bringing a pre-trial bail motion. (EHRT 117; EH Ex. 38 at 51; 5 CT 1182, 1193.)

         But then, prior to the first trial, the prosecution provided Petitioner's rap sheet which showed a prior armed robbery conviction, other armed robberies and a juvenile court record. (EHRT 117-19; EH Ex. 12 at ¶ 28; 5 CT 1219, 1229.) Hoover testified that he was shocked. (Id.) When confronted with this new information, Petitioner stated he thought his criminal history was sealed as juvenile records. (EH Ex. 12 at¶ 28; EHRT 119, 155.)

         Petitioner blamed Hoover, alleging that Hoover deficiently “did not look for criminal records in other counties because he was not aware and did not ask whether [Petitioner] had lived in other counties. . . .” (DOC. No. 329 at 9-10, citing EH Ex. 12 at ¶ 27; EHRT 115, 145, 277-78.) Petitioner argues that Hoover should have expected to get inaccurate information because that is often the case with criminal defendants. (EH Ex. 5 at ¶ 57; EHRT 272, 304-05, 329; EH Ex. 6 at ¶ 30.)

         Petitioner also argues that Hoover did not fully investigate the noted armed robberies and conviction and failed to follow-up on the information he was able to obtain. (EH Ex. 5 at ¶ 53; EH Ex. 12 at ¶ 29; EH Ex. 6 at ¶ 28, citing EH Ex. 39 at Ex. 3 thereto.) He suggests that Hoover did not provide Dodd with instructions and feedback necessary to focus Dodd's investigation. (See EH Ex. 5 at ¶¶ 50-53; EH Ex. 6 at ¶¶ 26-27; EHRT 120.) For example, Petitioner contends that Hoover did not obtain the files of prior defense attorneys and the related court files. (EH Ex. 5 at ¶¶ 53-54; EH Ex. 6 at ¶ 27.)

         However, Hoover stated in his 2007 habeas declaration that upon learning from the prosecution of Petitioner's 1970 armed robberies and convictions, he directed a preliminary investigation of the related aggravating evidence including locations and contact information for law enforcement officers and witnesses. (EH Ex. 12 at ¶ 29; see also Id . at Ex. 3 thereto.) During the first trial, Hoover had Dodd investigate and report on Petitioner's criminal history (EH Ex. 12 at ¶ 29; EH Ex. 41 at ¶ 13; EH Ex. 38 at 46; EH Ex. 42; EHRT 152) including as to each of the five armed robberies (EH Ex. 6 at ¶ 28, citing EH Ex. 38 at 46 as corrected on February 10, 2008).

         As noted, Hoover testified this investigation of potential penalty defense facts was made in case Petitioner “changed his mind” about mounting a penalty defense. (Id.; EHRT 152-55.) Defense investigator Dodd also obtained copies of booking records - all summarized in Dodd's report. (Id.) Hoover also testified on cross-examination at the evidentiary hearing that he believed he did have Dodd contact witnesses to the robberies. (EHRT 154.)

         The record suggests that Petitioner's penalty defense objection, lack of candor and lack of participation limited Hoover's general investigation. Hoover testified in his habeas declaration that he did not believe he could have gone very far with a background investigation without Petitioner's cooperation and participation. (EH Ex. 12 at ¶ 53.) In this regard, Hoover seems to have had scant access to such cooperation and participation given Petitioner's penalty defense objection and his seeming inability to provide information that could be corroborated. (See EHRT 145.)

         It seems that the misinformation provided by Petitioner, more than Hoover's alleged failure to direct Dodd's investigation (EHRT 114, 120) negatively impacted the defense team's efforts to obtain accurate criminal history information. (Id.) This is especially so given the limited investigatory resources generally available at the time of Petitioner's trial.

         (2) Employment, Educational and Social History

         Petitioner alleges that Hoover was deficient by failing to investigate his employment, educational and social background and arrange for preparation of a social history for the penalty phase jury. (EHRT 152.)

         As noted, Petitioner initially told Hoover that he had a graduate degree in geology and a job in an oil related business, but apparently provided no specifics. (EHRT 114-15.) However, according to a contemporaneous police report, Petitioner was unemployed around the time of his arrest on the capital crimes. (1 CT 44-45.) Later, the defense team was able to glean some prior employment documentation from family members (EH Ex. 41 at ¶ 12; EHRT 122) and from documents at Petitioner's residence (EHRT 128).

         After the January 22, 1982 conviction and special circumstance findings, Hoover directed investigator Dodd to further investigate Petitioner's social, employment and educational background in preparation for the penalty phase. (Id.; EH Ex. 12 at ¶ 50; see also EHRT 114-115, 122; EH Ex. 41 at ¶ 13; EH Ex. 42.) Dodd did so, reviewing the employment documentation found in Petitioner's home. (EH Ex. 12 at ¶ 51 and Ex.'s 6-12 thereto; EH Ex. 47.) Dodd was able to confirm some prior employment information based upon his discussions with Petitioner (EH Ex. 38 at 48; EHRT 131) and these documents (EHRT 128, 131; EH Ex. 12 at Ex. 6-12 thereto.) However, Dodd learned a prior employer “did not think too much of [Petitioner.].” (Id.)

         Dodd's associate, investigator George Glenn (hereinafter “Glenn”), who apparently worked with Ruby “throughout the investigation” (RT 1464), provided Hoover with a written report dated January 25, 1982 (one day before the scheduled start of the penalty phase) and related notes summarizing the available education and employment information including the noted employment information reviewed by Dodd (EH Ex. 45; EH Ex. 12 at Ex.'s 6-12 thereto), again concluding therein that Petitioner's employers had nothing good to say about him (id.; EH Ex. 46; EHRT 132-33).

         Hoover apparently viewed the confirmation of prior employment as potentially helpful to the defense. (EHRT 131.) However, Hoover did not follow-up with employer(s) (id.), finding such matters “totally irrelevant” given that Petitioner would not allow presentation of any penalty defense. (EH Ex. 38 at 54.)

         Petitioner argues that Hoover deficiently investigated his educational and social background, failing to contact then available family members and others for mitigating information. (DOC. No. 321 at 24-31; see also EH Ex. 41 at ¶ 12; EHRT 119-22; EH Ex. 37 at ¶ 3, regarding his sister Suzanne Williams [hereinafter “Suzanne”]; EHRT 80-81, Ex. 27 at ¶¶ 5, 6, regarding his brother Donald Steven Sanders [hereinafter “Steve”]; Ex. 24 at ¶¶ 4, 5, 7, regarding his cousin Bobby Sanders [hereinafter “Bobby”]; Ex. 17 at ¶ 58, regarding his mother Lois Raymond aka Tomi Sanders [hereinafter “Tomi”]; Ex. 25 at ¶ 35, regarding his father Don Sanders [hereinafter “Don”]; and Ex. 22 at ¶ 29 regarding his cousin Allen Eugene Sanders [hereinafter “Eugene.”].)

         For example, Petitioner points to Steve, who testified at the evidentiary hearing that he was not contacted by the defense team during Petitioner's trial (EHRT 80-81) and that he learned of Petitioner's penalty defense objection only after the final verdict (id.). Petitioner points to Bobby, who spoke to Petitioner by phone a number of times during his trial (EHRT 81-86); Bobby testified at the evidentiary hearing that he was not contacted by Hoover and learned this was a death penalty case only after sentencing (id.). Hoover failed to contact Steve and Bobby even though Steve and Bobby were then available and known to Hoover. (EH Ex. 12 at ¶ 52.)

         However, the record suggests that Hoover did contact certain family members regarding Petitioner's case and penalty defense. In January of 1982, during the guilt phase trial Hoover asked Dodd to locate Petitioner's father, Don. (EHRT 135; EH Ex. 12 at ¶ 49.) Dodd had investigator Glenn locate Don in a hospital in Maryland, but Glenn was unable to talk with Don or provide any information about him at that time. (EH Ex. 12 at ¶¶ 44, 49; see also Id . at Ex. 5 thereto.) During this same period, Hoover spoke with Petitioner's wife, Marian, about the trial including Petitioner's penalty defense objection, (EHRT 126-27; EH Ex. B at 774-75), although it appears that Marian preferred not to testify to avoid disclosing Petitioner's violence toward her. (EHRT 134; EH Ex. 38 at 39; see also EH Ex. 1 at ¶ 213); see e.g., Lang v. Cullen, 725 F.Supp.2d 925, 1028 (C.D. Cal. 2010) (counsel may reasonable forego presenting background evidence when the investigation discovers mostly harmful evidence).

         Petitioner's younger brother, Roger Sanders (hereinafter “Roger”) testified at the guilt phase of the second trial. (EHRT 31-32, 1435-50.) Hoover briefly met with Roger at Roger's workplace (EHRT 54-55) and asked him what Petitioner was like and whether Roger would be willing to testify at the penalty phase (EHRT 48-51). Roger testified that Hoover did not specifically ask him anything about the penalty phase. (EHRT 53.) He testified that there was no mention of Petitioner's objection to a penalty phase defense. (EHRT 52-54). Nevertheless, Roger seems to concede that Hoover did ask him about Petitioner's family history. (EHRT 52-54.)

         Suzanne, Petitioner's sister, was a prosecution witness at the second trial and maintained close contact with their parents. (EH Ex. 37 at ¶ 2; EHRT 59, 61-62.) She testified at the evidentiary hearing to her belief that she did speak with Hoover during Petitioner's trial (EHRT 63), but was uncertain whether she talked with Hoover about Petitioner's background and upbringing (EHRT 72). Suzanne testified that she was aware of Petitioner's penalty phase objection (EHRT 64-65), although she did not remember talking to Petitioner about it (EHRT 67). Suzanne conceded that around the time of Petitioner's trial the family members were geographically distant and did not communicate well with each other (EHRT 69-71.) This suggests the defense team faced similar challenges during its investigation.

         As discussed post, just prior to the penalty phase, Hoover succeeded in bringing Petitioner's parents, Don and Tomi, to Bakersfield to talk with Petitioner about his penalty defense objection. (EHRT 135-37.) According to Hoover, this was to ensure the objection was a “personal, honest, conscious, sober decision.” (EHRT 137.)

         c. Decision to Forego a Penalty Defense

         Petitioner alleges that Hoover was deficient by foregoing further investigation as well as development and presentation of a penalty defense. (DOC. No. 321 at 92-104.)

         Petitioner argues that Hoover's general investigation was insufficient to support a reasoned response to Petitioner's objection and a strategic decision to forego further penalty defense investigation. (See DOC. No. 321 at 111-112; EH Ex. 1 at ¶¶ 230-37; EH Ex. 5 at ¶¶ 44, 95-104; EH Ex. 6 at ¶¶ 18, 37-39; EH Ex. 8 at ¶¶ 18, 47; EH Ex. 9 at ¶¶ 62-79.)

         He argues that Hoover's alleged deficiencies also left Petitioner unaware of the then available mitigating evidence causing Petitioner to become more entrenched in his objection to a penalty defense. (See EH Ex. 5 at ¶¶ 65, 91-94; EH Ex. 6 at ¶¶ 9, 16, 21; EH Ex. 8 at ¶¶ 33-39; EHRT 283); see also Allen v, Woodford, 395 F.3d 979, 1001 (9th Cir. 2004) (counsel ineffective where investigation of potential mitigating evidence was untimely, hasty, and incomplete).

         Relatedly, Hoover stated in his habeas declaration that

[U]pon reflection, I wish I had not taken [Petitioner] at face value. I should have investigated [Petitioner's] background more thoroughly and earlier in the case. Although [Petitioner] seemed adamant about his position, I did not have an adequate understanding of his make-up. If I had, I may have been able to better react to his objection to LWOP before we reached the penalty phase.

(DOC. No. 321 at 112:18-22, citing EH Ex. 12 at ¶ 63.)

         However, for the reasons discussed ante and post, Petitioner has not demonstrated that Hoover was unreasonable in his decision to forego a penalty defense given the facts and circumstances facing Hoover.

         i. General Duty to Investigate

         Petitioner alleges that Hoover had a general duty to investigate the penalty defense notwithstanding Petitioner's objection to that defense. In support, he points to 1981-82 norms in Kern County (see EH Ex. 6 at ¶ 14; EHRT 270), suggesting that Hoover had a general duty to conduct an early penalty phase investigation (see DOC. No. 321 at 80-104, citing the ABA Standards § 4-4.1 at 4-53-55 [2nd ed. 1980]; EH Ex. 135; EH Ex. 9 at ¶¶ 31-33, 45; EHRT 297, 306-08, 317; EH Ex. 5 at ¶ 32; EH Ex. 8 at ¶ 12); see also Bell v. Ohio, 438 U.S. 637, 642 (1978) (“[S]entencer, in all but the rarest kind of capital case, [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers.”); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (same). He argues this general duty to investigate was the standard practice in Kern County in 1981, even when a client objected. (See DOC. No. 321 at 80-104.)

         Petitioner also points to the heightened importance that attaches to a capital mitigation investigation and argues Hoover was required to ensure his existing caseload did not impair his capital representation. (EH 135, ABA Standards § 4-1.2); see also Frierson v. Woodford, 463 F.3d 982, 989 (9th Cir. 2006) (“[T]he imperative to cast a wide net for all relevant mitigating evidence is heightened at a capital sentencing hearing because ‘[t]he Constitution prohibits imposition of the death penalty without adequate consideration of factors which might evoke mercy.' ”).

         Petitioner's Strickland experts and the defense team for co-defendant Cebreros suggest that in Kern County at that time, capital defense counsel commonly had their investigators research and gather penalty defense information and prepare a penalty defense prior to trial. (EH Ex. 8 at ¶¶ 13-15; EH Ex. 19 at ¶¶ 2-3; DOC. No. 329 at 13-14, citing EH Ex. 135.) Notably, the defense team for co-defendant Cebreros discussed penalty phase procedures and options early in the case and were ready with the penalty defense prior to the end of the guilt phase in the first trial. (EH Ex. 19 at ¶ 5; EHRT 320.)

         Although ABA Standards are merely guidelines and not the bellwether of what is objectively reasonable attorney conduct, Bobby v. Van Hook, 558 U.S. 4, 7-9 (2009), Ninth Circuit authority on counsel's duty to investigate appears clear that

[B]ecause the defendant's background is so important in the sentencing process, [i]t is imperative that all relevant mitigation information be unearthed for consideration; failure to do so [falls] far short of professional standards. [Citations] Because of the importance of background in convincing a jury to spare a defendant's life, the Supreme Court has recognized that it is ineffective for counsel to fail to present such evidence to the jury. [Citation]

Lang, 725 F.Supp.2d at 1038, citing Boyde v. Brown, 404 F.3d 1159, 1176 (2005), and that

[W]hile we have emphasized that “[t]he client's wishes ... inform our view of the reasonableness of a particular course of action taken by counsel, ” [Citation] (“[T]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”), in most circumstances a lawyer may rely on his client's decision against presenting mitigating evidence only after completing an appropriate investigation and only where the client's decision is “informed and knowing.” [Citation] (“A defendant's insistence that counsel not call witnesses at the penalty phase does not eliminate counsel's duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby assuring that the defendant's decision regarding such evidence is informed and knowing.”) [Citation] (“A defendant's insistence that counsel not call witnesses at the penalty phase does not eliminate counsel's duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby assuring that the defendant's decision regarding such evidence is informed and knowing.”). [Citation] (“[T]rial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background.” [Citation] (“While not directly addressing a situation where a client purportedly seeks to prohibit an attorney from investigating his background, these guidelines suggest that a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed wishes.” [Citation]

Stankewitz, 365 F.3d at 722; accord Strickland, 466 U.S. at 691; (see also EH Ex. 5 at ¶¶ 31-35).

         ii. Circuit Court findings on Remand Regarding Hoover's Performance

         In remanding claim 38 back to this Court, the Ninth Circuit observed that Hoover's investigation consisted of

[A] general interview with [Petitioner] regarding his background; a review of some of [Petitioner's] papers in a suitcase at his house, resulting in documents confirming [Petitioner's] employment in Canada between 1976 and 1977 and with the Getty Oil Company; a telephone call that confirmed that [Petitioner's] father was being treated in a hospital in January 1982 (Hoover did not interview [Petitioner's] father or speak with him on the phone); identifying the whereabouts of certain family members, but conducting no interviews; and conducting some “witness location searches (but not interviews)” for [Petitioner's] prior crimes in 1970.

Sanders, 171 F.App'x at 590. The Circuit Court went on to note that

Subsequent research by [Petitioner's] attorneys has revealed substantial mitigating evidence. Most of this involves [Petitioner's] life history and family background. From this, [Petitioner] argues that he could have presented evidence that he suffered extensive abuse and mistreatment, particularly from his father, and that he grew up in a household with severe domestic violence; that his mother was clinically depressed; that there was a history of neglect, substance abuse, pervasive poverty and transience in the family; that [Petitioner's] sister died as a result of drug abuse; that [Petitioner] spent time in several youth detention centers, in addition to time in prison for armed robbery; that he served in the Army, although he was later honorably discharged for having enlisted under the age of 18; and that after his imprisonment for armed robbery conviction, he was successfully employed, married and receiving good reports from his probation officers. [Petitioner] also argues that an investigation would have revealed evidence mitigating his robbery conviction, including the fact that he was heavily intoxicated at the time and was fully cooperative with police.
Significantly, [Petitioner] contends that an investigation into mitigating circumstances would have also brought forth evidence that he was easily persuaded and had difficulty making major decisions on his own. For example, [Petitioner] underwent a psychiatric evaluation that revealed he “performed poorly on tasks which required complex or divided attention”; that he had “cognitive inflexibility, that is, he was unable to use error feedback to modify his problem solving approach”; that he was diagnosed with attention deficit disorder; and that he suffered post-natal complications. Reports from prison psychiatrists and counselors suggested that [Petitioner] was “a weak, emotionally immature person with dependency needs who was easily influenced in the past, ” and that he was “easily led by peers.”

Sanders, 171 F.App'x at 590-91.

         Significantly, the Ninth Circuit, in remanding claim 38 relied in part upon the “relatively low bar” set by its (subsequently vacated) en banc decision in Landrigan v. Schriro. See 441 F.3d at 650 (quoting Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005)). The en banc Circuit Court provided that an attorney has a duty “to develop and present mitigating evidence, even when dealing with capital defendants who are uninterested in helping or even actively obstructive in developing a mitigation case.” 441 F.3d at 642 (quoting Rompilla, 545 U.S. at 380-83). But as reflected in the Court's reframed inquiry on evidentiary hearing, the Supreme Court later raised the bar in Landrigan by finding that counsel's failure to present mitigating evidence is not ineffective assistance where the petitioner actively interferes with and refuses to allow presentation of such evidence, 550 U.S. at 478, regardless of whether Petitioner's actions are informed and knowing, id. at 479.

         iii. Petitioner's Failure to Participate in and Objection to a Penalty Defense

         Petitioner alleges that Hoover was deficient by failing to elicit, develop and present then available mitigating evidence regardless of any lack of cooperation, objection, or interference with the penalty defense on his part.

         Petitioner argues that he was forthcoming with personal information. (EH Ex.'s 46, 48, 49, 50-1, 53.) Alternatively, Petitioner argues that Hoover should have known not to expect that the balance of information Petitioner provided would be correct because defendants generally are not reliable reporters of their life histories. (EH Ex. 5 at ¶ 57; EH Ex. 6 at ¶ 30; EHRT 329.) He argues the latter made it all the more imperative that Hoover start his penalty investigation early. (Id.)

         Hoover testified that he was shocked and upset by the noted misinformation provided by Petitioner (EHRT 117-19) and that as a result he had reason to question any information provided by Petitioner. (See EHRT 144-46; see also EH Ex. 38 at 42.)


[A] defendant's lack of cooperation does not eliminate counsel's duty to investigate.” [Citation] (“The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty”). [Citation] (“[A]lthough the client's desires are not to be ignored altogether, it may be inappropriate for counsel to acquiesce to the client's demands”); [Citation] (determining that defendant's lack of cooperation did not excuse counsel from further investigating mitigation evidence, especially given that “counsel was aware [that the defendant suffered] childhood abuse and there was essentially no other significant mitigating evidence to present to the jury”). Thus, a client's “opposition to calling family members or experts as witnesses does not excuse an attorney from interviewing experts and family members or from investigating documents containing mitigating evidence. [Citation]

Lang, 725 F.Supp.2d at 1054. There seems no debate that “a defendant's lack of cooperation does not eliminate counsel's duty to investigate.” Hamilton v. Ayers, 583 F.3d 1100, 1118 (2009).

         But even so, Petitioner has not demonstrated on the instant record that Hoover curtailed or terminated his investigation solely as a result of misrepresentations and lack of cooperation on Petitioner's part. (EH Ex. 12 at ¶ 26.) As noted, shortly after his appointment to the case Hoover's defense team began the investigation of potentially mitigating facts relating to Petitioner's social, family and criminal background. (EH Ex. 39 at ¶¶ 27, 30; EH Ex. 8 at ¶ 50; EH Ex. 8 at ¶ 18); see also Correll v. Ryan, 539 F.3d 938, 943 (9th Cir. 2008) (capital sentence defense investigation should include defendant's social background ...

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